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At last, a federal district court in Louisiana has put Liability Medicare Set-Asides on the map. On January 5, the Federal Western District Court of Louisiana entered an order on Big R Towing, Inc. v. Benoit, concluding that, in order to take Medicare’s interest into account in this Jones Act liability case, David Wayne Benoit will set aside $52,500 from the settlement proceeds for payment of future medical benefits arising out of the injuries alleged in this lawsuit.

Big R Towing employed Benoit as a captain aboard the towboat General Ellis at the time of the alleged accident on Dec. 27, 2009. Benoit’s status as a seaman under the Jones Act is not contested. Benoit allegedly injured his back and hip while performing deck work on the tow, a task he was allegedly restricted from performing due to pre-existing conditions in his spine for which he had undergone multiple surgical procedures in the past. Benoit did not return to work and was paid maintenance and cure benefits pursuant to the general maritime law. However, there was a dispute among the medical doctors as to whether Benoit needed surgery on his back and a hip replacement. Two physicians concurred that Benoit needed back surgery at the same level where he had undergone three surgical procedures before the alleged accident. Another physician said that Benoit did not have any type of acute injury, that there was no medical evidence to support the surgical recommendation, that Benoit’s pathology in his back was entirely pre-existing, and that there was no reason Benoit could not be working.

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